Deliberative Process Documents Get Pass in Public Records Laws

ByCaitlin Ginley |June 1, 2012

Earlier last month, lawmakers in Iowa completed work on a new open records statute. Senate File 430 creates the Iowa Public Information Board, a nine-member commission charged with enforcing the state’s open records and meetings laws.

For good government advocates in the Hawkeye State, the new legislation was cause for celebration — sort of.

Indeed, there were smiles all around as Gov. Terry Branstad signed the law on May 3 in the ornate Capitol Building, surrounded by lawmakers and journalists — many of whom spent six years on the effort. And the law is undoubtedly a victory of sorts for open government in the state, where enforcement was spotty at best, divided among several local and state entities. If a citizen’s request for information was denied, the only option was to sue — a time-consuming and costly course of action. Now, the Board can investigate complaints and bring them to court on citizens’ behalf.

Gov. Terry Branstad signs into law the bill establishing the Iowa Public Information Board while lawmakers and newspaper representatives watch on May 4, 2012. The bill includes provisions protecting deliberative notes from public examination. (Iowa Newspaper Association photo)

It all sounds good — except for the fine print. Tacked on to the bill is an amendment that exempts “tentative, preliminary, draft, speculative, or research material” from Iowa’s open records law. Translation: a document that is part of the policy making process can be held from public view. Such language was not part of Iowa’s original open records law, enacted in 1967, and its inclusion now is troubling to some. “You can use the drafts to learn things,” said Lyle Muller, executive director of the Iowa Center for Public Affairs Journalism, a nonprofit and nonpartisan news service. “I think they are valuable. They give you an idea of what the early ideas were that were rejected.”

The governor’s office, in working with the Iowa Newspaper Association, inserted the amendment, hoping it would be enough of an olive branch to finally pass the bill after six years of opposition from local governments and organizations like the Iowa League of Cities. Chris Mudge, executive director of the Iowa Newspaper Association, said her group agreed to support a preliminary draft exemption only with an effective enforcement board in place. Her goal, she said, was to make sure the exemption remained as narrow as possible.

But that’s not the only exemption. The new board’s jurisdiction also does not apply to “the judicial or legislative branches of state government or any entity, officer, or employee of those branches, or over the governor or the office of the governor.” That leaves state agencies and local governments, mostly.

Admittedly, that’s a lot not to include. When Branstad was asked about the exemptions at the bill signing, he cited constitutional provisions that allow the legislature, the judiciary and the governor’s office to remain exempt. He did add, however, that “we want to set a good example of transparency in this office.”

Mudge admitted the final bill is not ideal. But she said she hopes that an effective enforcement board for the open records law — a rare feature among states — will make the compromises worthwhile. “Sometimes,” she said, “you forgo the perfect for the possible.”

The good news, bad news tale from Des Moines is hardly unusual. Every state theoretically gives citizens the right to access government information. But an analysis of public records policies by the State Integrity Investigation reveals that, in state after state, the laws are riddled with exemptions and loopholes that often impede the public’s right to know rather than improve upon it. Some states, like Iowa, exclude entire branches of government. Others protect individual lawmakers’ records and inter-office communications.

Some laws are filled with hundreds of exceptions, buried in state codebooks to the point where it’s difficult to keep track of what the exceptions are and just how they got there.

It didn’t start out that way. Ken Bunting, executive director of the Missouri-based National Freedom of Information Coalition, a nonpartisan alliance of freedom of information advocates, journalists, lawyers and academics, said that most state open records laws started with a few — nine, ten, a dozen — exemptions. Several states adopted open records policies as early as the 1950s; many emerged in the post-Watergate era. Over time, the number of exemptions has grown, he said, undermining the presumption of openness.

“Getting access is more difficult than it should be,” Bunting said. “I blame some of that on the exemptions and their proliferation. But at the end of the day, it’s also about the attitudes of people in government.”

Hundreds of Exemptions and Counting

In Florida, the First Amendment Foundation, an open government nonprofit group, publishes a manual each year on the state’s open records and meetings laws. In 1985, the first year the report was published, there were 250 exemptions. Today, there are more than 1,000.

“At first it seemed really outrageous,” said Barbara Petersen, director of the Foundation and a long-time open government advocate. “But when you stop and think about the rationale, it actually benefits the people wanting access.”

Florida’s constitution states that the government can only deny access to a document if there is a specific statutory exemption, and that the exemption “shall be no broader than necessary to accomplish the stated purpose.”

In other words, the government needs to cite a reason — one specifically written in law — for denying access.

Petersen said she prefers the Florida system where, ultimately, the burden is on the government to cite the exemption and explain why a request was denied. “There’s a presumption for openness in Florida,” she said.

That’s not to say that out of 1,000 exemptions there aren’t some that are troubling to Petersen and her fellow open-government advocates. In 2011, the state carved out an exemption that mandates the withholding of video, audio, or photographs depicting the “killing of a person” except to family members. The bill, sponsored by Rep. Rachel Burgin, R-Riverview, was intended to protect families’ privacy. But Petersen said she vigorously fought this exemption, as the law also includes events leading up to and following the killing, which could potentially cover up misconduct of law enforcement officials.

The uptick in exemptions hasn’t been lost on Florida journalists. “Ten years ago, it was a lot more open than it is now,” said Dan Christensen, founding editor of the Broward Bulldog and former reporter for the The Miami Herald. He said the sheer number of exemptions in the law is telling.

“It’s better than what I hear in other states,” Christensen said. “But we’re just the best of a terrible lot.”

The Florida law, at least, requires a stand-alone bill whenever an exemption is created. “It makes it much easier to keep your eye on what they are trying to do,” Petersen said. That’s not always the case elsewhere.

In Vermont, there are 40 exemptions clearly laid out under the state’s open records statute, which was originally passed in 1975. But that only represents a fraction of the state’s current exemptions. The balance — a number that’s been hard for journalists, lawmakers, and open government advocates to even pin down — are sprinkled throughout the entire state code. In 2007, a legislative committee identified a total of 206 exemptions. In the years since, even more have been identified — a few have been added, too — and today that number sits at around 260.

Among those discovered: exemptions for reports on air contaminant sources, locations of endangered species, criminal records of school employees, maple products dealers and processors, and the subscription list of Vermont Life magazine. “Until recently, they’ve used any and all exemptions,” said Mike Donoghue, longtime newspaper reporter and executive director of the Vermont Press Association. “Out of the 260, they can always find something that they will try to apply to a records request.”

That was the case in 2011 when the Burlington Free Press requested information on state pensions to determine the highest-paid retirees in the state. The Treasurer’s Office initially maintained that individual pensions were exempt from the open records law under privacy protection. The paper appealed the denial and eventually won. “Up to your request we had not given out this information to people,” wrote state Treasurer Beth Pearce to the Free Press. The Treasurer’s Office did, however, notify the top 100 pensioners in the state, who were the subject of the Free Press’ investigative report, that the information was now considered public record.

In 2011, the legislature created a Public Records Study Committee — three members of the House and three from the Senate — which is meeting over the course of three years to review the more than 200 exemptions. The committee released its first report in January, which covered exemptions for tax records, health records, personal information, and university research. Among its conclusions: tax adjustment records should be made public, but academic research should not — however, it suggested a special carve-out for access to information on the treatment of research animals.

The committee proposed a public records bill this past session based on its findings to amend or eliminate some exemptions, but the measure never went anywhere. The bill was sent to the House Committee on Government Operations, chaired by Rep. Donna Sweaney, D-Windsor, who also sits on the Public Records Study Committee and co-sponsored the bill. Mike O’Grady, legislative counsel, said the House Committee was grappling with redistricting for most of the session and was unable to turn its attention to the public records proposal.

So far, the committee has reviewed about 63 exemptions. It is expected to resume meeting this summer.

Allen Gilbert, executive director of the American Civil Liberties Union of Vermont, said most people, including the legislators involved in the study, are frustrated by the enormity of the task. “There’s an irony in this,” Gilbert said. “The core problem is one that the legislature has created by writing all these exemptions over the years.”

A ‘Black Hole’

Charles Davis, former executive director of the National Freedom of Information Coalition, said it’s not always the number of exemptions that are troubling. He too considers Florida’s open records system to be among the country’s best — the exemptions are so specific that a record is public unless explicitly stated otherwise. What concerns him more are the states that “write exemptions so broad you can drive a truck through them.”

Among the more common — and arguably the most abused — is the “deliberative process” exemption, similar to the provision that was inserted into Iowa’s new open records bill, that allows an “out” for documents that are part of the back-and-forth of policy-making.

It’s common for states to provide such exceptions, and they can be applied — or misapplied — in any number of ways. In Illinois, any document or record in which “opinions are expressed” can be exempt. Virginia’s open records law protects “working papers.” Wyoming legislators exempted draft legislation and communication with staff and constituents up until a bill is introduced. Legislators see these exemptions as a protection of the deliberative process, as a way to shield the public from ideas that are not yet fully formed and allow for frank and open debate.

“It’s almost impossible to draw a statute that fits every situation” said Clifton A. “Chip” Woodrum, an attorney who served in the Virginia House of Delegates from 1980 to 2004. Woodrum said it is important for the public to have access to its government, but raised a question about when it is appropriate to make certain documents public.

“(Legislators) need some time to go through the process of doing your own fact-finding, doing your own analysis, reaching your own conclusions,” he said.

But advocates of public access worry about the potentially dangerous reach of such exclusions.

“There’s fear that it could become this black hole that officials could throw all sorts of information in and claim that it’s protected by deliberative privilege,” said Kathleen Richardson, executive secretary of the Iowa Freedom of Information Council.

Kathleen Richardson/Drake University photo

For example, Pennsylvania’s Right-to-Know Law exempts records that are part of “internal, predecisional deliberations,” including such deliberations that are part of legislative proposals, amendments, and budget recommendations. The exemption is “designed so that agencies properly have the space to be able to discuss policies and decisions,” said Terry Mutchler, executive director of Pennsylvania’s Office of Open Records. “You need to have an open discussion, a frank discussion, as you are making a decision.” But the exemption is often misapplied, which Mutchler said is easy to do because of the vague language used in the provision.

“The problem is when everything is stamped as predecisional,” she said. “That’s not good.”

Melissa Melewsky of the Pennsylvania Newspaper Association said the predecisional exemption is one of the most frequently cited exemptions when requests are denied, and that it is often cited alongside the noncriminal investigation exemption, including notes, reports, correspondence, and records that may reveal an investigation’s progress. “This has a really negative impact depending on how broadly the agencies interpret these exemptions,” Melewsky said.

In one example, the Pennsylvania Department of Education denied reporters access to a 2010 and 2011 forensic audit of the state’s assessment skills test, which was conducted by a contractor in response to allegations of widespread cheating in Pennsylvania schools. The Philadelphia Public School Notebook, the news agency that requested the documents, appealed the denial, which cited predecisional deliberations and noncriminal investigation exemptions. But the Office of Open Records ultimately upheld the decision — “records between an agency and an entity under contract with an agency regarding a proposed future course of action are exempt from disclosure as internal, predecisional deliberations of an agency.”

Benjamin Herold, an education reporter with the Notebook who covered the ongoing probe of alleged cheating, said the publication felt there was compelling public interest in making the documents available. “It’s tough to gauge or hold accountable the decisions of the Department of Education because that information is not available to the public,” Herold said.

Overall, Mutchler said she believes Pennsylvania has a strong system. Like Florida, Pennsylvania’s law places the burden on government to explain denials for requests. But it’s the few exemptions that can make the law seem “archaic” to some open-records advocates. For example, many states provide protection for records that are part of ongoing criminal investigations. But Mutchler said that Pennsylvania is one of a few states, if not the only one, that allows those documents to remain shielded from the public forever.

Leaving Out the Legislature

In February, the Oklahoma Senate passed a controversial “Personhood Amendment,” which would grant embryos full rights from the moment of conception. It was expected to sail through the Republican-dominated House, but never made it that far. In April, Oklahoma House Republicans met privately in a caucus before the bill reached the House floor and killed it.

There is no way to find out how Republican leaders voted in the caucus because the entire legislature is exempt from the state’s open records and open meetings laws.

Oklahoma does not give that same level of protection to any other entity in the state. And there’s a reason that such secrecy is not allowed elsewhere in the state, said Joey Senat, professor of communications at Oklahoma State University: “it breeds corruption, incompetency, and inefficiency.”

According to the Reporters Committee for Freedom of the Press, California, Massachusetts, Minnesota, Oklahoma, and Oregon provide that sort of sweeping exemption for the legislature in law. The Georgia Supreme Court ruled in 1975 that the legislature there is exempt from state open records law because it’s not a state agency. And still other states provide an exemption for individual legislators (like Michigan), while other states exempt lawmakers’ working papers (South Carolina and Virginia) and certain types of correspondence (New Jersey and North Carolina).

Lucy Dalglish, executive director of the Reporters Committee, called the legislature exemption a “monumentally arrogant” move. “Legislators by and large want everything to be public, except what they do,” she said.

Oklahoma state Rep. Jason Murphey, R-Guthrie, proposed a bill this session to remove the legislature’s exemption. But he said it was challenging to convince fellow lawmakers of the bill’s benefits.

“It wasn’t well-received by legislators who have become accustomed to a closed door, and the protection that it affords them,” Murphey said. The initiative was ultimately killed in March after a House committee hearing.

A public opinion poll revealed that a majority of Oklahoma voters strongly supported including the legislature under the state’s open record laws. Bunting of the National Freedom of Information Coalition, however, said that while polls often reveal significant majorities in favor of access, public support of open government issues is generally passive.

“It is not an issue that drives people to the ballot box, not a front burner issue,” he said. “It’s taken for granted up and until there is some bit of government information that you need to know.”

And there are practical political considerations as well. Senat of Oklahoma State said the legislature in the Sooner State exempted itself from the open records law when it was first introduced in 1985. It was the only way the bill would pass. “If it had included the legislature, the powers that be would’ve said ‘no,’” he said.

But now, Senat said, the exemption allows special interest groups to exert control out of the public eye. He said Murphey’s bill failed in part because lawmakers did not want to disclose those relationships and communications.

Davis, now an associate professor at the Missouri School of Journalism, said he could understand exemptions from a lawmaker’s perspective. “They claim government will be more efficient, run better, be more innovative,” he said. “But really, it’s because they don’t want to [be subject to open records laws] and they’re afraid of public scrutiny. These people should put on their office clothes and go to work. They work for us.”

The State Integrity Investigation is a project of the Center for Public Integrity, Global Integrity and Public Radio International. The Iowa portion a Corruption Risk Report Card released through the investigation in March was compiled by the Iowa Center for Public Affairs Journalism and The Gazette (Cedar Rapids, IA).

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